Huge Award Upheld In Kmart Scuffle / Livermore guard tackled customer

Henry K. Lee, Chronicle Staff Writer

Published 4:00 am, Friday, October 27, 2000

2000-10-27 04:00:00 PDT LIVERMORE -- Kmart Corp. is liable for $3.8 million in damages awarded after a security guard at its Livermore store injured a customer in a scuffle that left the man, a dentist, unable to work, a state appeals court has ruled.

The appeals court, upholding a decision by Alameda County Superior Court Judge Bonnie Sabraw, agreed Wednesday that Michael Renehan, who was working in plain clothes, did not identify himself as a security guard before accosting dentist George Heiner, yanking his arm and tackling him.

Heiner's shoulder was permanently damaged in the 1995 incident, ending his career. Kmart was ordered to pay $3.8 million in compensatory damages to Heiner based on his projected lost income.

The appeals court dismissed assertions by Kmart that Heiner, now 42 of Livermore, had operated his dental business in violation of certain business codes and that Heiner was partially responsible for the scuffle and had been involved in previous altercations.

In a ruling written by Justice Patricia Sepulveda, the state appeals court said Kmart did not raise many of the issues in its appeal during the trial before the Alameda County jury.

Steven Bernard, a Newark attorney representing Heiner, said he was gratified by the decision and called the store's actions "inappropriate."

An attorney for Kmart, Mark Bonino of Redwood City, said yesterday that he plans to ask the state Supreme Court to review the appeals court decision.

"We are disappointed in the decision, but beyond that we can't make any other comment because it's still pending," Bonino said.

Heiner said Renehan assaulted him without cause on March 11, 1995 as he tried to get a refund for a telephone at the customer service desk. The dentist acknowledged that he was "frustrated" after being told he had taken too long to return the phone but said that he was not "out of control" or "yelling."

Renehan showed up at the desk without being called and stood directly behind the dentist, who testified that Renehan looked "scary," dressed in a black leather jacket with spike studs, army boots, earrings, a nose ring and a dark shirt with a skeleton on it.

The dentist said Renehan yanked his right arm to his back, tackled him to the ground, threw him three times against the store's glass doors before pinning him on the ground. Livermore police arrived and chastised Renehan for his "ganglike appearance" and for letting things get out of hand, the court said.

Even before the incident, Kmart employees had registered concerns about Renehan's overbearing tactics with people suspected of shoplifting, according to testimony at trial.